Consumers Win: Open Internet Rules Upheld by Courts

Early Tuesday morning, the D.C. Circuit Court of Appeals ruled 2-1 in favor to uphold the Federal Communication Commission’s (FCC) ability to regulate broadband through common carriage rules outlined in the 2015 Open Internet Order. The decision marks a watershed moment for supporters of “net neutrality” enforcement – including major content providers like Google and Netflix, and utility consumer advocacy groups like CUB.

This landmark court decision could mark the end of over a decade of debate around the federal government’s authority to ensure fair access to the Internet for content creators and consumers by implementing utility-style regulations similar to those for providers of home telephone service. Yet, as expected, cable and telecommunications industry groups have already dropped hints at a desire to appeal the decision in favor of an eventual Supreme Court ruling.

First, let us take a step back: How did we get here in the first place? What is the debate around net neutrality? And why are Internet Service Providers (or ISPs) so opposed to new, even relatively light-handed, regulations?

In a nutshell: An “open” Internet with enforced “network neutrality” rules is one where consumers can access lawful content where they want, when they want, and how they want. The central idea is that content providers should be able to share their content with consumers without risk or fear of facing discrimination from ISPs.

Important history: Common carriers benefit the public interest by delivering goods, or people (such as workers traveling by train), or utility services without unreasonable discrimination.

In 1887, Congress passed the Interstate Commerce Act to reign in an unjust and inconsistent railroad industry. This represented the first codified modern legal framework around common carriage rules.

In 1934, with telephone service considered an essential utility service like water and electricity, Congress passed the Communications Act, and it remained largely unchanged for more than 60 years until major amendments in 1996.

The original Communications Act spells out several “Titles” under which communication services are regulated. Title I regulates “information services” and Title II regulates “telecommunication services”. Through the 1996 Amendments, the FCC split communication services into two, distinct categories:  “basic” and “enhanced”. (Note: this is important.)

This meant that in 2002, when the FCC reclassified ISPs as “information providers” and broadband as an “enhanced information service”, imposing even basic common carrier rules for fixed and mobile broadband service became next to impossible under the law as written at that time.

Incredibly, these definitions are what the debate is all about – which is why, to ensure fair access to the Internet, it was so important for the FCC to reclassify broadband as a telecommunications service and ISPs as telecommunication carriers. The 2015 Open Internet Order does that and much more – in addition to preventing:

• Blocking: ISPs cannot block access to lawful content, applications, services, or non-harmful devices;
• Throttling: ISPs cannot disrupt lawful Internet traffic and;
• Paid Prioritization: ISPs cannot favor some lawful traffic in exchange for “consideration”.

The Open Internet Order also gives the FCC new powers to regulate both fixed and mobile broadband and monitor interconnection agreements – which are essentially deals between ISPs, other network operators, and content creators that allow direct connection to the provider networks.

Circling back to yesterday’s court decision: Even before FCC Commissioners cast their votes to approve the Open Internet Order, cable and telecommunications industry groups – headlined by: USTelecom; CTIA – The Wireless Association; the National Cable and Telecommunications Association (NCTA); the American Cable Association; AT&T; CenturyLink; and Alamo Broadband – quickly positioned themselves to oppose the rules by appealing through the courts. It was only yesterday, after more than year of labored hearings, that their efforts fell short.

Chief among cable and telecommunication industry complaints is that regulating broadband service under Title II of the Communications Act will bring about onerous rate regulation. The FCC, however, firmly addressed this in the Order by stating that there are no plans to include rate regulation as a component of their authority to safeguard fair delivery and access to lawful Internet content.

The second concern raised was that new regulations would infringe upon the First Amendment rights of the ISPs. The majority opinion from yesterday’s decision decided otherwise:

“Because a broadband provider does not – and is not understood by users to – ‘speak’ when providing neutral access to Internet content as common carriage, the First Amendment poses no bar to the Open Internet Rules.”

For now, the Open Internet Order appears to be remarkably safe – even with strong partisan opposition in Congress and the threat of appeal from the industry groups. In his statement from yesterday, FCC Chairman Tom Wheeler, who has made this issue the cornerstone of his administration, remarked that the ruling “is a victory for consumers and innovators” and that it “affirms the Commission’s ability to enforce the strongest possible Internet protections…[to] ensure the Internet remains open, now and in the future.”

Let us hope so.

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